Taxi-Trucks Parcel Express (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (C24/2011) [2012] ZALCCT 18 (6 June 2012)

Principle:

In applying a zero tolerance rule, consideration must be given to the specific circumstances of the case and the employee's circumstances.

Facts:

An employee with six years' service and a clean record went to work whilst still under the influence of alcohol. He had a lot to drink the night before at a traditional function. It is common cause that he did not drink any alcohol on duty or at the workplace, but the effects of the previous day's festivities were such that, when he underwent a breathalyser test, his blood alcohol level was three times over the legal driving limit. The employee was a general worker, and on the day in question, he was loading tyres onto trucks. He was dismissed for being under the influence of alcohol at work.

At arbitration, the arbitrator found that dismissal was too harsh a sanction. He ordered the applicant to reinstate the employee, but limited the amount of backpay. This had the effect that the employee had effectively been suspended without pay for four months.

Specific evidence was led about the employer's "zero tolerance policy" regarding being under the influence of alcohol at the workplace. The arbitrator found its blanket application to be unfair, as it failed to distinguish between different types of employees and their circumstances. The arbitrator also noted that no evidence was led to establish an irretrievable breakdown in the trust relationship between employer and employee.

The arbitrator's decision was upheld on review by the Labour Court. It seems fair to comment that the outcome may have turned on the test for review as established by Sidumo, namely whether the arbitrator's decision is 'a decision that a reasonable decision maker could reach'. The judge commented that the fact that the court may have formed a different view, is not the test on review.

Extract from the judgment:
[9]   The applicant's witnesses testified at arbitration that the company had a "zero tolerance policy" with regard to being under the influence of alcohol at the workplace. Although the operations manager, Pienaar, testified that this meant that the offence would automatically lead to dismissal, the evidence of the human resources manager, Burger, was somewhat more nuanced. He said that the company would have to follow its disciplinary code and that the circumstances would have to be considered by the chairperson of a disciplinary hearing.

[10]   The disciplinary code classifies being under the influence of alcohol as a "grade 3 offence". The code provides that a grade 3 offence "may result in a final warning or dismissal". Those offences "could result in summary dismissal ... after a formal disciplinary hearing." Plainly, contrary to Pienaar's understanding, the misconduct complained of need not necessarily be visited by a sanction of dismissal; it could lead to a lesser sanction, such as the one deemed fair by the arbitrator in the circumstances of this case.

[11]   The arbitrator appreciated this distinction. With regard to the "zero tolerance approach" he found:

"I find this approach to be unfair. A clerk for example would not be a danger to himself or to others and would not tarnish the image of the company as he would seldom, if ever, deal directly with clients or customers. However this would be totally different for an individual who held the position of a driver, a pilot or a managing director."

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[18]   Also, with regard to the employee's job function, I must incline more to the view of the arbitrator than to that of Mr Ackermann. The arbitrator drew a distinction between different types of job function. That is in accordance with the legal principles outlined in our case law. And despite the applicant's legitimate concerns about safety, the functions of a general worker loading goods simply cannot be equated to that of the applicant's drivers in applying its "zero tolerance" policy with regard to being under the influence of alcohol at the workplace.

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[32]   The arbitrator in this case appreciated this distinction and pointed out that a "zero tolerance approach" could not be applied without more to a clerk in the same way as a driver or a pilot.

[33]   It is against this background that the court has to decide whether the conclusion reached by the arbitrator was so unreasonable that no other arbitrator could have come to the same conclusion. The court must bear in mind that, as Waglay DJP recently pointed out in The National Commissioner of the South African Police Service v Myers & Others:

"Whatever one's personal view may be, the test as set out in Sidumo ... is whether or not the arbitrator's decision that dismissal is an appropriate sanction is a decision that a reasonable decision-maker could reach."

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[36]   The arbitrator did find that the "zero tolerance" rule was unfair; but he did so having regard to the specific circumstances of this case. Although Burger paid lip service to the discretion allowed by the applicant's disciplinary code, the way in which it was applied was closer to Pienaar's understanding. There is no indication that, in deciding on dismissal as a sanction, the applicant took the specific circumstances of this case and the employee's own circumstances into account. On the other hand, that is precisely what the arbitrator did in coming to the conclusion that he did come to. That was not unreasonable.

[37]   With regard to costs, I take into account that the applicant and SATAWU have an ongoing relationship. The effect of the arbitration award is also that the employee and the applicant will have to continue their relationship. In law and fairness, each party should pay its own costs.